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105 Cornell L. Rev. 1561 (2019-2020)
Against Prosecutors

handle is hein.journals/clqv105 and id is 1615 raw text is: AGAINST PROSECUTORS L Bennett Caperst INTRODUCTION ............................................. 1561 I. THE PROSECUTORS ................................ 1565 II. WE, THE PEOPLE .................................... 1573 A. From Private Prosecution to Public Prosecutors ............................. 1573 B. Three Lessons .... ....................... 1581 III. BENEFITS ...................................... 1586 CONCLUSION ......................................... 1609 INTRODUCTION It has now become common, at least among progressive criminal justice scholars, to argue that the criminal justice system could be fixed-or at least greatly improved-if we sim- ply regulated prosecutors more. If we curbed their unfettered discretion.1 If they sought less harsh punishments. Or if they charged fewer people, which arguably has contributed more to mass incarceration than the War on Drugs.2 If we required t Professor of Law and Director of the Center on Race, Law, and Justice, Fordham Law School. B.A. Princeton University; J.D. Columbia Law School. As- sistant U.S. Attorney, Southern District of New York 1995-2004. E-mail: ca- pers@fordham.edu. This Article benefited from presentations at NYU School of Law's Policing Colloquium; faculty workshops at Albany Law School, University of Nevada Las Vegas Law School, GW Law School, Suffolk University Law School, University of Georgia School of Law, New York Law School, Brooklyn Law School, Fordham Law School; and from presentations at CrimFest and the Law and Soci- ety Conference. For comments, suggestions, and feedback, I am especially grate- ful to Miriam Baer, Alice Ristroph, Deborah Weissman, Ronald Wright, Bruce Green, Olivier Sylvain, Cynthia Lee, Roger Fairfax, Kate Weisburd, Eric Miller, Barbara Fedders, Leigh Goodmark, Julia Simon-Kerr, Jeremy Bearer-Friend, Thea Johnson, Jenia Iontcheva Turner, Anna Roberts, Jenny Roberts, Sandra Mayson, Daniel Greenwood, Rachel Barkow, Barry Friedman, Jocelyn Simonson, Rachel Harmon, Stephanos Bibas, Robin Lenhardt, Youngjae Lee, and Jed Shugerman. Hector Melendez and Alanna Phillips provided invaluable research assistance. 1 ANGELA J. DAVIS, ARBITRARY JUSTICE: THE POWER OF THE AMERICAN PROSECUTOR 15-17, 192-94 (2007). 2 JOHN F. PFAFF, LOCKED IN: THE TRUE CAUSES OF MASS INCARCERATION-AND HOW TO ACHIEVE REAL REFORM 206 (2017) (concluding that [prosecutors have been and remain the engines driving mass incarceration); see also EMILY BAZELON, CHARGED: THE NEW MOVEMENT TO TRANSFORM AMERICAN PROSECUTION AND END MASS INCARCERATION 77-81 (2019) (arguing that prosecutors bear much of the responsi- bility for over-incarceration). 1561

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